Combination of factors provide reasonable grounds

June 01, 2010

By Mike Novakowski

A police officer’s information, observations and experience are all factors that, viewed cumulatively, can provide sufficient cause to make an arrest, Alberta’s top court has ruled.
In R. v. Nguyen, 2010 ABCA 146, police investigated the accused after receiving a confidential tip that two individuals were trafficking drugs at a particular address. Surveillance revealed the presence of a red Corvette, linked to Nguyen, who had also been seen there.

A police officer’s information, observations and experience are all factors that, viewed cumulatively, can provide sufficient cause to make an arrest, Alberta’s top court has ruled.

In R. v. Nguyen, 2010 ABCA 146, police investigated the accused after receiving a confidential tip that two individuals were trafficking drugs at a particular address. Surveillance revealed the presence of a red Corvette, linked to Nguyen, who had also been seen there.

A police informant subsequently provided information that Nguyen headed a criminal network that supplied cocaine; he brought in drugs from Vancouver, drove a red Corvette, lived near a Blockbuster video store and operated out of JOX Sports Bar. Police reports about Nguyen included information that he had previously provided six ounces of cocaine to an undercover officer and had been charged with selling 58 pounds of marijuana, but had not been convicted in either incident.

An intelligence log also revealed that someone told police he feared his brother, a high-level drug trafficker with the same name as the accused, would harm him. No action was taken in the incident. An unknown source had also told the drug unit that a red Corvette was seen at a known drug location and someone named Nguyen was selling large amounts of cocaine in downtown Edmonton.

A records search confirmed the red Corvette was registered to Nguyen and surveillance was set up. Police saw him drive to a mall, circle the lot and then stop beside another vehicle for a discussion with two women.

Two people used cell phones and one of the women was known to be involved in mid-level drug trafficking. Officers believed this was a negotiation between dealers. Nguyen then went into a condominium complex carrying a black portfolio.

Four days later he drove to JOX, picked up a male and left about a minute later for the condo complex. He left about 90 minutes later with a black bag. The next day Nguyen’s vehicle was again seen parked at the condo. He left one of the units with an orange and white cell phone box, drove to JOX, sat in his car for about 20 minutes and then drove away. It was believed he used his cell phone there.

The investigator directed a marked police vehicle to conduct a “traffic stop,” which was done in Nguyen’s driveway. He approached, identified himself and commented about suspicious activity he had observed at JOX. When asked, Nguyen denied there was any contraband, weapons or alcohol in the vehicle. The officer opened the cell phone box, found cocaine and arrested him. A search of the car turned up more cocaine, money, three cell phones and a condo key.

At trial in the Alberta Court of Queen’s Bench Nguyen alleged his rights under ss. 8 and 9 of the Charter, among others, were breached. Following a voir dire the trial judge disagreed, finding the arresting officer had reasonable grounds to arrest him for possessing illegal drugs when he ordered the vehicle stop. Nguyen was convicted on several counts of possessing drugs for the purpose of trafficking, proceeds of crime and illegal handguns.

Nguyen challenged his conviction before the Alberta Court of Appeal, suggesting his arrest was illegal. Although he accepted that the arresting officer subjectively had grounds to arrest for drug possession, he submitted that the trial judge erred in the objective assessment of the grounds for arrest. The court disagreed.

Under s.495(1) of the Criminal Code, a peace officer has the power to arrest without a warrant, providing they “subjectively have grounds on which to base the arrest, which must be justifiable from an objective point of view,” the court noted.

In other words, the court is required to evaluate, in addition to the officer’s own belief, whether such a belief was objectively reasonable. The court must determine whether in all the circumstances at the time of the arrest, viewed objectively, did reasonable grounds exist...

The question is whether a reasonable person standing in the position of the officer could conclude that, based on all the factors known or observed, there were reasonable grounds to arrest. This means something more than mere suspicion, but less than proof on the balance of probabilities.

Moreover, the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved, the events leading up to the arrest both immediate and over time and the dynamics at play in the arrest. In evaluating whether objectively reasonable grounds exist, the evidence must be viewed cumulatively (references omitted, para. 18).

The trial judge considered the facts, information gleaned from police records, informants and surveillance in concluding the officer subjectively had reasonable grounds to arrest. As for the objective portion of the test, the trial judge found a reasonable person standing in the arresting officer’s shoes would have reasonably believed Nguyen likely possessed drugs – considering the constellation of facts, information the officer knew, his observations and extensive experience investigating the drug trade. Even though another judge may have reached a different conclusion, the trial judge’s decision was supported by the evidence in this case.

Given the confidential source information that Nguyen was involved at a high level in the drug trade, where and how he conducted his business, police intelligence on Nguyen that he had been found in possession of drugs on more than one occasion, his involvement with other alleged associates and the surveillance conducted by police generally and (the arresting officer) specifically which confirmed some of the information .

The officer had reasonable grounds to arrest Nguyen prior to searching the cell phone box. His appeal was dismissed.